Public Bill Committee

[Mr David Crausby in the Chair]

Clause 14  - Disclosure proceedings

Amendment proposed (this day): 78, in clause14, page11, line14,at end insert ‘where that information relates to national security or the interests of the United Kingdom’.—(Diana Johnson.)

Question again proposed, That the amendment be made.

David Crausby: I remind the Committee that with this we are discussing the following:
Amendment 79, in clause14,page11,line15,leave out ‘an’ and insert ‘a foreign’.
Amendment 80, in clause14,page11,line17,leave out ‘an’ and insert ‘a foreign’.
Amendment 81, in clause14,page11,line18,leave out paragraph (d).

Diana Johnson: I welcome you back to the Committee after our short break, Mr Crausby. It was interesting to hear what the Under-Secretary of State for Justice, the hon. Member for Kenilworth and Southam, had to say. I think he moved from a non-speaking part to a speaking part very well. Clearly, I did not agree with everything he said, but I thought he put it very well. I look forward to seeing whether the hon. Member for Edinburgh West will table some amendments on Report to represent his view. I am not sure whether it is his view alone or one that he shares with other Liberal Democrats or the coalition Government. My right hon. Friend the Member for Torfaen talked with vast knowledge and experience on the subject. I found it difficult to believe that he was ever a green Minister of State; I am sure he was accomplished from the start.
After listening carefully to the Minister, I still have concerns about clause 14. It must deal with the control principle and the relationship we have with our allies and countries that provide intelligence to us, and I am still concerned that it is too widely drafted. I want to test the Committee’s opinion on amendment 78, but I will reserve the Opposition’s position on amendments 79 to 81 and we might return to the matter on Report.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

Clause 14 ordered to stand part of the Bill.

Clause 15  - Review of certification

Question proposed, That the clause stand part of the Bill.

Diana Johnson: Clause 15 provides a review procedure for the Secretary of State using the certificate procedure under clause 14(3)(e). Clause 15(3) states that in looking at the matter, the court
“must apply the principles which would be applied in judicial review proceedings.”
In light of the comments that have been made recently by the Lord Chancellor on judicial review proceedings, I wondered if there was anything the Committee needs to be aware of in terms of changes to judicial review that might have an impact on this particular proceeding.

Jeremy Wright: I am grateful for the hon. Lady’s remarks. I do not think that what the Secretary of State for Justice was saying would have any direct bearing at all on the principles that are applied by the courts when they consider judicial review proceedings. We are concerned about the extent of judicial review proceedings, but that is a different matter. In relation to this, it would not have a direct effect on our deliberations. The hon. Lady is right that clause 15 proposes that the courts can review the application of judicial review principles, and review the Secretary of State’s decision that the disclosure of the material would damage national security or international relations. Of course if such an application were successful, the prohibition on the court ordering disclosure of the information referred to in the certificate would not apply, and disclosure could therefore be ordered under the court’s usual residual disclosure jurisdiction. In conclusion, on this clause I would simply say that we believe it is sensible to have that review available. Clause 15 sets it out, and I commend the clause to the Committee.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill.

Clause 16 ordered to stand part of the Bill.

Schedule 2  - Consequential provision

Amendments made: 49,in schedule 2, page17,line30, at end insert—

‘Data Protection Act 1998 (c. 29)
1A In section 63A of the Data Protection Act 1998 (application to Parliament)—
(a) in subsection (2), after “Commons,” insert “other than where they are determined by or on behalf of the Intelligence and Security Committee of Parliament,”, and
(b) in subsection (3), after “Lords,” insert “other than where they are determined by or on behalf of the Intelligence and Security Committee of Parliament,”.’.
Amendment 50,in schedule 2, page18,line4, at end insert—

‘Freedom of Information Act 2000 (c. 36)
3A (1) The Freedom of Information Act 2000 is amended as follows.
(2) In section 23 (information supplied by, or relating to, bodies dealing with security matters), in subsection (3), at the end insert—
“(o) the Intelligence and Security Committee of Parliament.”
(3) In Part 1 of Schedule 1 (Public Authorities; General)—
(a) in paragraph 2, after paragraph (d) insert—
(e) information held by the Intelligence and Security Committee of Parliament.”;
(b) in paragraph 3, after paragraph (d) insert—
(e) information held by the Intelligence and Security Committee of Parliament.”’.—(James Brokenshire.)

Schedule 2, as amended, agreed to.

Schedule 3  - Transitional provision

Amendment made: 51,in schedule 3, page21, line22, after ‘Committee’, insert ‘of Parliament’.—(James Brokenshire.)

Schedule 3, as amended, agreed to.

Clause 17  - Commencement, extent and short title

Amendment made: 34, in clause17,page14,line1,leave out subsection (8).—(James Brokenshire.)

Clause 17, as amended, ordered to stand part of the Bill.

New Clause 5  - Review and revocation of declaration under section 6

‘(1) This section applies where a court seised of relevant civil proceedings has made a declaration under section 6.
(2) The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.
(3) The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.
(4) The court may revoke a declaration under subsection (2) or (3)—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.
(5) In deciding for the purposes of subsection (2) or (3) whether a declaration continues to be in the interests of the fair and effective administration of justice in the proceedings, the court must consider all of the material that has been put before it in the course of the proceedings (and not just the material on which the decision to make the declaration was based).
(6) Rules of court must make provision—
(a) as to how a formal review is to be conducted under subsection (3);
(b) as to when the pre-trial disclosure exercise is to be considered to have been completed for the purposes of subsection (3).’.—(James Brokenshire.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 1  - Reporting and review

‘(1) As soon as reasonably practicable after the end of every three-month period the Secretary of State must—
(a) prepare a report about his exercise of the powers conferred on him under this Part of this Act during that period; and
(b) lay a copy of that Report before Parliament.
(2) The person appointed by the Secretary of State to review the operation of the provisions of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 must also carry out an annual review of the operation of the provisions of this Part of this Act.’.—(Dr Huppert.)

Brought up, and read the First time.

Julian Huppert: I beg to move, That the clause be read a Second time.

David Crausby: With this it will be convenient to discuss the following:
New clause 2—Annual renewal—
‘(1) The Secretary of State’s powers under Part 2 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.
(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.
(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.’.
New clause 11—Expiry and renewal—
‘(1) The Secretary of State’s powers under sections 6 to 11 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.
(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.
(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.’.
New clause 12—Reporting and review—
‘(1) As soon as reasonably practicable after the end of every three month period the Secretary of State must—
(a) prepare a report about his exercise of the powers conferred on him, and the exercise of the powers and rights conferred on others, under clauses 6 to 11 of this Act during that period; and
(b) lay a copy of that report before Parliament.
(2) The person appointed by the Secretary of State to review the operation of the provision of the Terrorism Act 2000 and part 1 of the Terrorism Act 2006 must also carry out an annual review of the operation of the provisions of this part of this Act.’.

Julian Huppert: Thank you very much, Mr Crausby, it is a pleasure to serve again under your Chairmanship. I do not intend to detain the Committee very long with the details; I suspect they are relatively self-explanatory and I hope that we will have a constructive response from the Government on these issues.
Essentially, the new clauses derive in their entirety from the Joint Committee on Human Rights’ report where the independent reviewer, who has been quoted so often, made it very clear that he was in favour of the principle of annual review by an independent reviewer, not least with what he described as the danger of “creep”. There is a lovely quote from him:
“A procedure that is introduced in a small way ends up being used quite a lot or a procedure that is introduced as one procedure then crosses the species barrier into another type of procedure and, before you know where you are, it is all around.”
We have seen this happen with a whole range of legislation in the past, particularly some of the huge panoply of counter-terror legislation brought in by the party opposite. As we all know, it ended up with someone being removed from their conference under it.
These new clauses would implement what is recommended by the Joint Committee on Human Rights, so new clause 1 would require a report on how the powers are being used. This is very important because we do not yet know exactly how many cases might be covered and we do not know what sort of rare events or exceptions might happen. It is important that there is that clarity and reporting so that Parliament can have a look. We all make errors when legislating; all Governments will always get things slightly wrong as things work out and as unexpected events happen. It would be helpful to monitor what is happening so that we can see if it is working as the Government and Opposition intended. If it is not, I want to make sure that we know that it is not, and that we have the opportunity on an early occasion to try to correct that.
New clause 1 would say that all of the powers in (1)(b) should be reported. The text taken from the Joint Committee on Human Rights suggests that that should be done every three months. If the Government wish to have a different time period, I am relatively relaxed about the exact time period; I do not want this to be overly onerous. The principle should be that the Government need to make those reports and lay them before Parliament.
In particular, we want the independent reviewer to review the powers every year, so that he can provide his detailed expertise to assess if they are working as intended, or things are going wrong that Parliament should be alerted to and should have a look at. That is what new clause 1 would do, and I hope that the Government will be able to accept the reasoning behind it, and be helpful.
Before I move on to new clause 2, I should compare and contrast new clause 1, which my hon. Friend, the Member for Edinburgh West, and I tabled before Christmas, with the rather similar new clause 12 that was tabled by the hon. Member for Hammersmith a couple of weeks ago. The only difference between the two, at least that I can see, is which sections we are referring to. I hope that the hon. Gentleman will accept that we are looking slightly more broadly, but we are particularly looking at some of the concerns that my hon. Friend has already raised about some of the Norwich Pharmacal conditions. They are what they are at the moment, and we will have to see what sort of constraints the Joint Committee on Human Rights might recommend we make. They should also be subject to review in case anything is going wrong, independently of how that might be changed in the future.

Diana Johnson: I am interested that the hon. Gentleman talked about Norwich Pharmacal. I put it to him that surely one of the aims of the provisions in clause 14 is to provide certainty to foreign states when they provide intelligence. If there is a possibility that in the future that might change, is that not defeating the object of clause 14?

Julian Huppert: The hon. Lady will be aware that one cannot provide absolute certainty because Parliament can, at any time, legislate to change things. Reporting on how it is working is not saying that it would automatically be dropped, and I will get on to sunset clauses in a moment. However, there is no way that this Parliament can give complete certainty to anybody that the law in this country will never be changed in the future. I am sure the hon. Lady realises that and fully accepts it. One of the principles about a review, and reporting on how a provision is being used, is that we may discover that we have not provided sufficient protection. I find it hard to imagine how that would be, but I hope that she would agree with the principle that we should know how legislation that we have passed is being operated in reality—what happens when it gets out into the wild. New clauses 1 and 12 are similar, but ours goes that slight step further and says that we want to know how things that we pass are progressing.
New clause 2 deals with annual renewal and is, again, remarkably similar to new clause 11, tabled some time earlier. Sunset clauses were a fairly standard thing that was accepted by the previous Government on a number of occasions for some of the rather extraordinary legislation that they introduced. We, as Parliament, should have the opportunity not just to wait until there happens to be time in the parliamentary schedule to remove something we feel is no longer necessary, but to update the legislation annually. The Conservative party argued for that on a number of occasions when it was in opposition. The Opposition, presumably, agree with it because they have tabled new clause 12. Therefore, the only real debate is how frequently there should be such a sunset and exactly what should be covered.
I have the same disagreement, I suspect, that the hon. Member for Kingston upon Hull North has. New clause 2, which was recommended by the Joint Committee on Human Rights, would cover the entirety of part 2, whereas new clause 12, which was tabled by the hon. Member for Hammersmith, would cover merely the closed material procedure and would not apply any more broadly than that. Interestingly, new clause 12 would also not apply to clauses 12 and 13, which deal with changes in CMP for immigration and employment purposes. I dare say that at some point, we will hear the reasons for why that is. Otherwise, the new clauses are fairly similar.
What we are proposing is the sort of thing Governments tend to make available and often concede in order to get legislation through. I hope that the Government will look at the proposals seriously and take steps towards the proposals from the Joint Committee on Human Rights. I am happy to work with the Government on the subject. New clause 2 suggests a one-year sunset clause. I had a conversation with the Home Secretary regarding the legislation on terrorism prevention and investigation measures, which ended up with a five-year sunset clause. There is a range of numbers between one year and five years that could be considered.
If we are going to do something exceptional, it is important that we check that we are doing it and have a discussion about whether we are going the right way, or whether things are going in an unintended direction. I hope that the Government will look seriously at the proposal, and I look forward to hearing the opinion of other members of the Committee.

Andy Slaughter: I will speak to my new clauses as well as those tabled by the hon. Member for Cambridge. He is renowned for his brevity and taciturnity, and I wish I could emulate him; I will do my best.
It is no surprise that there are some similarities between our new clauses and those tabled by the hon. Gentleman, because they are cribbed almost entirely from the recommendations of the Joint Committee on Human Rights. To be precise, the differences are as follows.
Our new clauses refer specifically to the clauses relating to CMPs in civil proceedings, whereas those tabled by the Liberal Democrats refer to the whole of part 2. We wanted to make that distinction partly for the reasons given by the Minister without Portfolio, in his response to the Joint Committee last week.
As my hon. Friend the Member for Kingston upon Hull North said, we do not approach Norwich Pharmacal in the way that the Liberal Democrats appear to promote. I am yet again confused, because, having said that they share the concerns of the Joint Committee, they did not vote for our amendment, which would have gone part of the way—not all of it—towards meeting those concerns. No doubt we will find out at some point, by reading Twitter or blogs, what the spin on that is.

Julian Huppert: Can the hon. Gentleman point to where his amendment was recommended in the report by the Joint Committee on Human Rights?

Andy Slaughter: If there were concerns regarding the way in which the attack on Norwich Pharmacal jurisdiction is phrased in the Bill at the moment, one would have thought that our amendments, as far as they met the concerns, would be supported.
It appears from their sunset clauses and review procedures that the Liberal Democrats wish for a three-monthly or annual process of unpicking Norwich Pharmacal jurisdiction, which, as the Minister without Portfolio said, would create exactly the uncertainty that the provisions in the Bill are designed to correct. However, that is a matter for them. It explains why we differentiated our new clauses in that way.

James Brokenshire: I accept the hon. Gentleman’s points about uncertainty, but does he equally accept that his own new clause creates huge uncertainty for the court? Litigation may be ongoing without any certainty that that procedure will be able to continue.

Andy Slaughter: That, of course, was the point made by the noble Lord Wallace of Tankerness in the other place. The answer is in two parts. Partly it is what the hon. Member for Cambridge has said, which is that if the Government do not like the detail—the regularity of review—they are welcome to propose their own alternative to that. The central point—this is where I suspect we will disagree—is how severe this change in civil procedure rules and civil law is. It will require the ultimate in parliamentary scrutiny, and that will be the essence of my submission now.
To finish the point that I was making, the other difference between the new clauses, at least in relation to new clause 12, is the insertion of the phrase “rights conferred on others”. I am grateful to Professor McNamara for highlighting that in the brief that he gave to the Committee. He states:
“This falls short of what is needed for transparency because it is not only the Secretary of State that has powers under the Bill. Other Secretaries of State may seek closed proceedings, as may parties, and (depending on the final form of the Bill) there may be applications to intervene.”

Julian Huppert: I apologise for not addressing that point in my remarks. That was an error on my part. The concern that I have is how the Secretary of State could in reality do that. I can see the intention, but given that we have established that there are routes for other parties to make applications, would the Secretary of State necessarily be able to do that? It would be great if they could, but I am a little concerned that it might not be possible.

Andy Slaughter: No doubt the Minister will say that it is impractical. This is a lacuna that allows an opportunity for the review not to take place in a thorough way. The hon. Gentleman has a reasonable point, but if the principle of the review is accepted, which I hope it is, it is a matter for the Government to define how that will be accomplished.
Those are the only significant differences between the various new clauses tabled by the Liberal Democrats and Labour Members. We say that reviews are necessary and we disagree with what the Minister without Portfolio said in general. In response to the Joint Committee on Human Rights last week, he said that there was a provision for a review, anyway, because there was now a process for a post-legislative review, which the Select Committee would undertake. I have no doubt the Select Committee will be assiduous in that review, but I do not think that that exonerates the Government from having their own process.
The Government say that there is a distinction between this Bill and legislation such as the Terrorist Asset-Freezing etc. Act 2010 and TPIMS, where there is a report to Parliament on a quarterly basis and which are reviewed by the independent reviewer. They seek to make a distinction between individuals and processes. That is a distinction without a difference, in my submission. We are talking about fundamental changes to law and therefore it is right, at least for the foreseeable future, that the process of review and renewal by Parliament takes place. It is not a cumbersome process. It allows for the provisions to be extended simply by a vote if there are no greater concerns. Only if the House had real concerns would the matter be reopened and debated in full. I do not see it as bureaucratic and I do not think that it is cumbersome. I do not see it as interfering with due process. If the Minister has concerns that the time limits are too short, he is welcome to propose longer time limits. The principle of keeping such a fundamental change—something that so fundamentally attacks basic principles of civil law—under review is unarguable.
The final reason why I will press these new clauses is the same reason why I urge the Government to reflect on this matter between now and Report and Third Reading. I do not know whether they have a date in mind for Report and Third Reading. I assume it will not be next week, so it will probably be after the short recess. After the hasty and rushed fashion in which Second Reading was dealt with before Christmas—the Government are obviously in terror of their lordships—who knows what they are planning? I hope that it will be after the recess, because I hope that they table a sunset clause and use that short period of time to review where we are with the Bill.
The Joint Committee is discussing its further considerations. It may already have written to the Minister in response to the Minister without Portfolio’s document that was published last week. I think, given the close attention the Joint Committee has paid to this issue, we would value its view on the hasty but fundamental changes that the Government have introduced in Committee. When the Minister responds, he might want to tell us whether he has already been approached by the Joint Committee. If he has not, I hope that he will solicit its views and take them on board. That will not be done quickly.
The Minister might also want to seek a judicial review. Notwithstanding the quite correct attempts at preventing me from quoting at length the views of the Supreme Court, those views are relevant and no doubt the Minister is familiar with them. The judiciary has taken a very close interest in this matter. Indeed, we would not be here were it not for the Supreme Court’s decision in the al-Rawi case. Therefore, its views should also be solicited.
I and my colleagues am unhappy about the way the amendments were brought forward at a late stage in the Committee process. The Bill has a chequered history. I am not just talking about the procedural irregularities—the promise of a White Paper that was never delivered, the stages that were rushed through and fundamental amendments being introduced at the last stage. I am far from clear what the view is of either part of the Government, let alone both parts of the Government working together, in relation to the Bill. Therefore, if the Bill is enacted in its current form or something close to its current form—obviously it has several stages to go through—it is important that there is a review process and regular parliamentary oversight.
In summary, the Government’s position, if my submissions of the past two weeks have been correct, is to roll back the process effectively to where we were when the Bill was introduced in the House of Lords. That is to say, the Government were happy with the Bill after they made the three post-Green Paper changes about national security, inquests and judicial review. I think the Minister would agree with that. Indeed, the hon. Member for Cambridge was happy with the Bill at that stage because he published his famous press release welcoming it as a victory for open justice. At that stage at least—let us treasure that moment—the Government were on all fours with themselves and supported the Bill as amended. But then amendments were made in the Lords, which were apparently accepted on Second Reading in the Commons. We now have a wholesale change to that approach.
The Government made those changes in a hurry and in a way that left a number of people confused—that might have been their intention—about where they are going with the Bill. That is a recipe for bad legislation. If it is bad legislation and there has been no opportunity for those issues to be aired, further advice needs to be taken. After the Bill is passed, it needs to be regularly reviewed. I say that also in relation to the Liberal Democrats. It might be that, out of the generosity of his heart, the Minister has been jumping through hoops to help his coalition partners. If so, given their voting behaviour on the amendments, he has a thankless child.
I am genuinely confused. I hope that matters will be clarified when we discuss the Bill on Report and on Third Reading, so we will know where the Liberal Democrats stand. We have had a good debate. We have all valued the contributions from the hon. Members for Cambridge and for Edinburgh, West, and the erudition and intellect that they have brought to our discussions. However, a little more clarity would have been sensible.
The latest pronouncement from the hon. Member for Cambridge stated:
“Mike Crockart and I just called a vote to remove secret courts from the Justice and Security Bill, in line with Conference’s motion.
Despite highlighting in the debate that they supported closed proceedings in principle, Labour saw an opportunity to make mischief and eventually backed us. But due to DUP support for the Tories, we lost 10-9.
I’ll give a fuller update to everyone concerned soon.”
I await that fuller update to see what new magic is drawn down from the ether, and what other strange things are happening in this Room that I do not observe. It is nice that we are used to the virtual world now, but it seems that we have a virtual world in the sense both of it being online, and of it bearing no resemblance to the real world.

Julian Huppert: The hon. Gentleman keeps citing our tweets. I welcome him into the modern age. Yet again, which bit of that tweet did he think was not correct?

Andy Slaughter: Let me tell the hon. Gentleman. I am not at all clear that what happened in Committee was a wholesale rejection of CMP procedure. However, if that were so, I look forward to the Liberal Democrats tabling amendments on Report that mirror the words of the motion passed at their conference or, at the very least, that would fully, not partially, restore, the safeguards introduced by the House of Lords. I am describing the disparity between what Liberal Democrats do and what they say they do, but when they do something and want it to mean whatever they think that it should mean, we really are in a virtual world.

Michael Crockart: In the interests of accuracy, since the hon. Gentleman is so interested in Twitter accounts, he tweeted yesterday:
“Just finished Secret Courts Bill. Lib Dems voted with us 7 times in Committee”.
Was it not actually the case that it was the Opposition who voted with us a number of times?

Andy Slaughter: I think that even I am bored with this now.

David Evennett: “In conclusion”!

Andy Slaughter: In conclusion, I hope that we have been clear throughout our proceedings. We have a clearly stated position. It is a position that we shall maintain, and I look forward at least to having support for that position. I am grateful for the support of the hon. Member for Cambridge for amendment 55. I will leave him alone now, and let him continue the debate with the Liberal Democrat party.
On the serious matter of presenting a Bill that is fit for purpose, I hope that at the very least we will be able to sustain the amendments tabled by their lordships. It has been an erudite and clear debate. Such amendments are supported by the senior judiciary in the country as well as the Joint Committee on Human Rights, and I hope that that will be the way forward.
Even the Minister must have had relatively little time to get to grips with his amendments, nevertheless he has done an admirable job. I hope that when he reflects on them, he will think again about matters so that, when we and their lordships discuss the Bill again, harmony breaks out on all sides and we end up with something that protects national security. Insofar as it attacks basic principles of English common law, it must have sufficient safeguards to ensure that closed material procedures are the exception to the rule and that, when they are used, they are so closely constrained that we can be sure that they are the only option that is available.

James Brokenshire: Let it not be said that anything that the hon. Gentleman has said has ever been hasty or rushed during this Committee, nor has the Government’s approach in considering the amendments. I shall concentrate my comments on the new clauses in the group, rather than straying into a broader Second Reading-type debate. My hon. Friend the Member for Cambridge exhorted me to come up with a constructive response. I hope he felt that my contributions in other debates were constructive, thoughtful and of assistance. I will do my best to consider carefully the points raised.
In essence, the amendments touch on three separate issues: reporting, review and renewal. They have been structured in that manner. Members have sought to draw parallels with other legislation: we had annual debates on control orders and the Terrorism Prevention and Investigation Measures Act 2011 obviously provides certain measures. I caution right hon. and hon. Members against drawing a parallel with such legislation; the control orders were against particular individuals and were maintained over a period of time, whereas we are talking about a court process—a litigation process. Direct parallels cannot therefore be drawn in the way that they perhaps have been.
I recognise the issues being flagged, but the points about certainty are germane. In the context of the Norwich Pharmacal jurisdiction, we seek to give assurance that that deals with a case law process that has developed and it has been dealt with. Similarly, with CMPs, we are talking about litigation against the Government, for example, for which a CMP has been sought and obtained, and yet, if the amendments are taken at face value, there would not be certainty in the litigation. Someone might initiate a CMP and a court case may be proceeding, but if it does not get renewed at the annual renewal, all the litigation is thrown into question.
Although I understand the concern about how the provisions would be applied in practice, and therefore the need for further assurance and information and the need to examine the provisions, there are particular challenges if we go down some sort of annual renewal route. Some of the debates we had on control orders became rather meaningless, because an annual debate on a control order in that environment did not add anything: it was almost perfunctory and did not apply scrutiny in any event.
Yes, in the example I gave about the TPIMs Act, we took a different approach, but I question the read-across from that to another situation. I understand what one might characterise as the anxiety about how the measure will operate in practice and the desire to look for further assurance.

Julian Huppert: The Minister is right that the annual debates on control orders were in many cases fairly unsatisfactory, but does he agree that they ensured that Parliament was aware that it was doing something exceptional and abnormal and that that was one of the things that led to our coalition Government getting rid of control orders and replacing them with TPIMs, which are a significantly lesser step?

James Brokenshire: My hon. Friend will remember the debates we had on the TPIMs Act and the points made in that environment about ensuring that there was an informed approach. All I am saying is that because we are talking about a different scenario, which involves litigation, court process and dealing with case law issues about putting evidence into a court process, I do not think that there is a read-across when it comes to sunsetting or renewal. That parallel cannot be drawn in the same way as it might be in other examples, albeit that I understand the anxiety that underpins my hon. Friend’s point and the point that the hon. Member for Hammersmith raised.
The new clauses would, for example, require the Secretary of State to
“prepare a report about his exercise of the powers conferred on him, and the exercise of the powers and rights conferred on others.”
We anticipate that CMPs will be used so infrequently that there may not be any matters to report on a quarterly basis. The point has been raised that the new clauses are about the principle rather than the detail of the proposals. There are existing mechanisms by which the courts publish their open judgments, and the Government made an amendment in the Lords to ensure that where an application is made under clause 6(1), that fact must be reported to the other parties in the proceedings. The existing mechanisms of accountability should be sufficient.
The new clauses also seek to add a review of the operation of the provisions in part 2: CMPs and Norwich Pharmacal. I have concerns about how practical such a proposal might be, given that the independent reviewer’s remit has already been extended on several occasions. The incumbent, David Anderson QC, has indicated that there is a limit to how much one person can do, and we must not dilute the effectiveness of his role by overburdening him.
Not withstanding that, I recognise, value and appreciate the contribution that David Anderson has made to the debate on CMPs. Nothing prevents him or any future post holder from being asked to provide ad-hoc reports on CMPs, Norwich Pharmacal proceedings or national security material, or being invited by Parliament to give his opinions.
There are arguments over the benefits of reporting and review requirements, but annual renewal would have far more serious implications. New clause 2 would provide that the Secretary of State’s powers under part 2 would expire only a year after Royal Assent unless a statutory instrument was laid and approved by a resolution of Parliament. The Government believe that new clause 2 would largely negate the benefit of part 2. In the case of Norwich Pharmacal, we seek to address the key problem of how to reassure our intelligence-sharing partners that we can protect the information that they share with us in confidence. A time-limited protection would fundamentally undermine one of the key objectives of legislating, because we would not be able to provide the necessary reassurance if we have legislated only for a period that may be as short as one year. If the legislation does not provide sufficient clarity and assurance, our intelligence-sharing relationships risk deteriorating well beyond the point of the restrictions placed on us since 2008, and our allies would doubt our continuing ability to keep material safe. There are, therefore, limitations on what can be achieved, although I acknowledge the point about sensitivity.
The measures in clauses 14 and 15 remain the only comprehensive safeguard against the serious damage that Norwich Pharmacal relief poses to our national security and international relations, and they are designed to be a permanent solution to a problematic issue that has arisen, not a short-term measure. Creating the possibility that CMPs would cease to be available halfway through a case in which the judge had decided that a CMP was in the interests of the fair and effective administration of justice would undermine the judge’s discretion, and it would be a recipe for chaos in the courts.
In the case of challenges to the Home Secretary’s decision to refuse someone British citizenship or to exclude them from the UK, we are dealing with a category of cases where the court has found that it is potentially fairer to the claimant for there to be a CMP available. The expiry of the relevant clauses would reduce fairness by removing the ability effectively to challenge those decisions. The proposals for annual renewal appear to be drawn from the Terrorism Prevention and Investigation Measures Act 2011. As I have said, I think there are limitations and challenges to how that read-across operates in practice.
It is also important to note that the Constitution Committee did not recommend a sunset clause in its report. It said that the House may wish to consider the Bill being independently reviewed—not renewed—five years after it comes into force. As previously explained, Bills are normally subject to review three to five years after Royal Assent. The normal practice is that the Select Committee will have responsibility there.
I have said that I will be constructive, and I recognise the anxiety that has been expressed in certain quarters of this Committee and by those outside, so I am persuaded that it would be helpful to provide reassurance on how the CMP provisions will be used. For the reasons that I have explained, I do not feel that the new clauses quite work. I therefore hope that my hon. Friend the Member for Cambridge will feel minded to withdraw his new clause. I assure him that the Government will reflect on the subject of reporting and review and will return on Report with a suitable amendment.
I recognise the points made, throughout our deliberations, about information and how reviews should take place, and I respect them; they have been made not only by my hon. Friends the Members for Cambridge and for Edinburgh West, but by the Opposition. I assure the Committee that the Government will reflect on this debate and others that have taken place in the House and come forward on Report with alternative proposals.

Julian Huppert: I thank the Minister for everything he has said—in particular, his commitment that the Government will come up with appropriate amendments on reporting and review, which is welcome and will assuage me. I thank him for his concession. I look forward to seeing those amendments, and I hope they will comply with the thrust of what the Joint Committee on Human Rights was trying to achieve.
As I have said, the exact time scales should be set on a practical basis. I hope that we will have the chance to talk about some of that, and I hope that the Government’s amendments will be ones that we can entirely agree with. Given that the Minister will essentially be accepting the principles of new clause 1, I do not feel the need to test the Committee’s view on it.
On new clause 2, which would create an annual renewal, I understand and appreciate the Minister’s concerns about the detail of how that could work. He is right that there will need to be some provision to deal with an ongoing case, when one period ended. There is also the issue of Norwich Pharmacal and whether one would want to offer protection over information that had been provided up to the point of repeal or when the powers ended.
The Minister is absolutely right to say that one could construct a far more detailed amendment that would achieve in detail what I want to achieve in principle through new clause 2. I accept that he is reluctant to provide that, but I want to test the Committee’s opinion on the principle of annual renewal.
I give a big thanks to the Minister for agreeing on reporting and review; that will make a significant difference to many people. I accept that he will not want to support the annual renewal, but I hope he will reflect on a way forward, which I am sure his draftspeople will be able to provide.
The Government have had significantly over a month to look at the matter; I have had conversations with the Minister without Portfolio. I will test the Committee’s opinion on new clause 2, but I will not press new clause 1 to a Division. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 2  - Annual renewal

‘(1) The Secretary of State’s powers under Part 2 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.
(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.
(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.’.—(Dr Huppert.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

The Committee divided: Ayes 2, Noes 9.

Question accordingly negatived.

New Clause 11  - Expiry and renewal

‘(1) The Secretary of State’s powers under sections 6 to 11 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.
(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.
(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.’.—(Mr Slaughter.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

The Committee divided: Ayes 9, Noes 9.

Question accordingly agreed to.

Question put, That the clause be added to the Bill.

The Committee divided: Ayes 9, Noes 9.

Question accordingly negatived.

New Clause 12  - Reporting and review

‘(1) As soon as reasonably practicable after the end of every three month period the Secretary of State must—
(a) prepare a report about his exercise of the powers conferred on him, and the exercise of the powers and rights conferred on others, under clauses 6 to 11 of this Act during that period; and
(b) lay a copy of that report before Parliament.
(2) The person appointed by the Secretary of State to review the operation of the provision of the Terrorism Act 2000 and part 1 of the Terrorism Act 2006 must also carry out an annual review of the operation of the provisions of this part of this Act.’.—(Mr Slaughter.)

Brought up, and read the First time.

Andy Slaughter: I beg to move, That the clause be read a Second time. Given the helpful comments from the Minister and in light of what the hon. Member for Cambridge has said, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

James Brokenshire: On a point of order, Mr Crausby. May I thank you and your co-Chair, Mr Gray, for your expert chairmanship of the Committee? I am sure we can all agree that the Bill has been well scrutinised by the Committee, and that we have had some informative and useful debates. The fact that we have done so in a timely and efficient fashion that has enabled us to finish early is a credit to our two Chairmen, to the usual channels and to all members of the Committee.
We have certainly learned some interesting new facts and been referred to some interesting new concepts. Two immediately spring to mind. I am not sure that all of us would necessarily have been fully familiar with the Osmotherly rules at the outset—or, indeed, had a detailed association with or affection for the Wiley balancing test. I will leave it to the passage of time—or perhaps the Hansard reporters—to tell whether, in due course, our considerations will lead to any Brokenshire requirements, rights and certificates, any Johnson amendments, or, dare I say it, any Slaughter quotations.
Our debates have been informed by the expert knowledge around the Committee Room. When we debated the issue of oversight of the Intelligence and Security Committee, the contributions of my hon. Friend the Member for New Forest East and of the right hon. Member for Torfaen were invaluable. They have greatly assisted the Committee by enabling us to consider a number of points raised by the Bill with the benefit of their outside experience, knowledge and input. I am quite clear that our consideration has been added to and aided as a result of their contributions.
I am also grateful for the legal input from Government and Opposition Committee members and the legal expertise that has been shown. A number of the issues we have considered have been legal points about how courts operate and the jurisprudence that has been developed. We also had input from a member of the Joint Committee on Human Rights, to ensure that that aspect of our consideration was properly informed.
I thank my hon. Friends for all the support they have provided to me and my hon. Friend the Member for Kenilworth and Southam, whom I congratulate on his first speaking part on a Bill as a Minister—before he exits Committee Room right. I thank him for his support. I am sure that his first outing in this particular context will not be his last.
I also thank my hon. Friend the Member for Bexleyheath and Crayford; as a Whip, he has shown steely nerve and fingertip control, which has been absolutely masterful. I am also grateful for the sterling support provided by my hon. Friend the Member for Ilford North, who has acted as PPS, and for the additional support provided by my hon. Friend the Member for Weaver Vale.
I thank the Opposition for the tone and manner in which they have challenged and scrutinised the Bill. Bill Committees do not necessarily always have that tone, but although we have disagreed on a number of points, the analysis and detailed approach of the Opposition Front-Bench team and other Opposition Committee members have aided and assisted our consideration.
I thank the Bill team and parliamentary counsel for their expert input, as well as for being able to read my handwritten scribbles—a task that I know has at times been testing. I thank you, Mr Crausby, and your co-Chair, Mr Gray, for your sterling and clear chairing of our sessions. I also thank the Clerks, the Hansard reporters and the Doorkeepers for their contribution to ensuring the smooth running of our proceedings.
The Bill has been improved by this Committee’s scrutiny. The Government have reflected on proceedings in the other place and will reflect on some of the points made in the Committee’s deliberations between now and Report. Ultimately, this important Bill will improve parliamentary and independent oversight of the security and intelligence agencies, protect our highly important intelligence-sharing relationships and allow more cases involving intelligence to be heard.
The Bill is about more justice, not less, and I look forward to underlining that core point during the remaining stages of our consideration and as the Bill progresses to the Floor of the House.

Andy Slaughter: Further to that point of order, Mr Crausby. I echo everything that the Minister said in paying tribute to those who have contributed to making this a good Committee—beginning with you and your co-Chair, Mr Gray, who have been firm but fair throughout the proceedings. I know that you and Mr Gray would have loved to hear more of what the nine justices said in the Supreme Court case of al-Rawi, but we had to curtail that. I know that having had a taster, all Committee members will rush away to read the full judgment.
Having mildly embarrassed the Clerk earlier, I do not want to do so again, but I thank him for his support in the run-up to the Bill, as well as during our proceedings. It is amazing how much one forgets between Bills about what procedures need to be followed. As always, we have had an absolutely sterling effort from everybody who has helped, including the Doorkeepers and Committee staff. It has been a formidable effort.
I have sometimes found previously—I am sure it has had nothing to do with me—that when I thank Ministers or they thank me, it is the most difficult part of the Committee. However, that is far from being the case on this occasion. I can say genuinely that having two Ministers who are so emollient in how they say things, even if not in what they say, is a refreshing experience. I thank all Government Committee members, including the Liberal Democrats, who are part of the Government, we must remember—or they must remember, or somebody must remember. We have heard an interesting range of opinions.
When my hon. Friend the Member for Kingston upon Hull North was dealing with the Intelligence and Security Committee provisions, I thought at one stage that she was getting it not in stereo but five ways. She was getting a Front-Bench Government view, a Liberal Democrat view, a Back-Bench Government view, a view from the ISC in stereo from both sides and occasionally other views as well. She dealt with them admirably. As the privilege of making the final remarks falls to me, I thank her in particular for everything that she has done on this Committee. I am sure that we can all learn from her concision, accuracy and lack of repetition; I am referring, of course, to Members generally.
I also thank our Whip, my hon. Friend the Member for Lewisham East, who with great efficiency and charm has kept us in order and who now just wants me to shut up, because we both want to get down to the Chamber as soon as possible to talk about the closure of our A and E departments. I thank all Members, particularly the hon. Members for New Forest East and my right hon. Friend the Member for Torfaen, for their expertise, not just in terms of their experience of the ISC but generally on security and other matters.
Although this Committee has been relatively short, it has been a case of standing on the shoulders of giants. We have had a large amount of expert opinion to rely on from the Joint Committee and other Committees of the House, from the higher courts of this country and from expert Members in this House and the other place.
The Bill is not over yet; that is not a threat. We will see what happens in the remaining stages here and in the other place, but I think that we can go away comforted by the fact that we have explored the issues in full and have, in a reasoned way, contributed, I hope, to making the Bill better when it finally reaches the statute book. My hon. Friends have asked me also to mention the Clerk of the Commons for his assistance—the letter that we had in the first part of our discussions.
I think I have dealt with all matters. If I have forgotten anybody, I apologise. We have had a good Committee.

Julian Huppert: Further to that point of order, Mr Crausby. I add my thanks and those of my hon. Friend the Member for Edinburgh West to you, Mr Gray and all the staff involved: the Bill team, Hansard, the Doorkeepers and so forth. It has been an entertaining exercise. I will leave it to others to decide whether this Bill Committee has been a fair and effective administration of legislation and whether we balanced our Wiley correctly. It has been an enjoyable experience.
I thank the two Ministers for all their comments, particularly the hon. Member for Old Bexley and Sidcup for actually giving way on one point, which was satisfying after much frustration. I also thank the Whip, the hon. Member for Bexleyheath and Crayford, for how he has conducted things; it has been a pleasure working at least on the same side of the room as him on a number of occasions. I thank Opposition Committee members for backing us on some, if not all, of our proposals.
It has been a great pleasure to learn so much about procedures in the event of a tie. I am glad that we have all had that opportunity. It has also been a great pleasure to have the chance to educate the hon. Member for Hammersmith on the nature of a coalition. Two parties can work together despite not agreeing on absolutely every issue. The Opposition will know that the coalition between Blair and Brown had some tension as well. I thank you again, Mr Crausby, for your chairmanship. We will see how the Bill proceeds.

Bill, as amended, to be reported.

Committee rose.